I want to question the public domain of works that were subject to copyright upon publication but no longer are due to expiration of the term of copyright. Public Domain Day celebrates such works no longer subject to the private censorship regime as of January 1 each year, and mourns the lack of such work in some jurisdictions such as the United States (none 1999-2019, unless another retroactive extension pushes the date back further).

Copyright is unjust. Works created under that regime are tainted. Extreme position: the disappearing of works subject to copyright is a good, for those works are toxic for having been created under the unjust regime. Compare with born free works, initially released under a free/open license (i.e., creators substantially opted out of regime). Even born free works were created in the context of an unjust regime but we have to start somewhere.

Born free works are a start at re-shaping the knowledge economy away from dependence on the unjust regime, a re-shaping which is necessary to transfer prestige and power away from industries and works dependent upon the unjust regime and towards commons-based production. Works falling out of copyright due to expiration do not tilt the knowledge economy toward commons-based production. Worse, copyright-expired works distract from the urgent need to produce cultural relevance for born free works.

Celebrating works falling out of copyright celebrates the terrible "bargain" of subjecting knowledge to property regimes (harming freedom, equality, and security) in order to incent the over-production of spectacle. Compare with born free works, which provide evidence of the non-necessity of subjecting knowledge to freedom infringing regimes.

Note the title of this post starts with “question” rather than “against” – my aim is not really to claim that copyright mitigation through measures such as limited terms of restriction is bad (as noted above, such a claim really would be extreme, in the sense of being very difficult to justify) but to encourage prioritization of systematic repair through commons-based production. There are many (but not nearly enough) people with commitments to copyright mitigations, limited terms in particular, and use of term expired works even more particularly. Further, there presumably will be some attempt at further retroactive extension in the U.S. before 2019, and though I will probably complain about non-visionary rear guard actions, I don’t doubt that stopping bad developments such as further retroactive extension is in the short term relatively easy and should be done.

Thus this “questioning” leads me to merely want:

Copyright mitigations to be useful for commons-based production (limited terms are such; contrast with many mitigations which make using works possibly subject to copyright somewhat less costly but not in a way which is useful for commons-based production).

Commons-based production efforts to actually take advantage of newly unrestricted works to a greater extent than freedom infringing industries do. Wikimedia projects (especially Wikisource and Wikimedia Commons, with cultural relevance via Wikipedia) do an excellent job, but meeting this very tall order probably requires many additional hugely successful initiatives that are able to create cultural relevance for free works, including works falling into the public domain and works building on such.

Making repair part of knowledge policy discourse, at least on the part of liberalizing reformers: a debate about mitigation or opposition to expansion is always an opportunity to position and advocate for repair; that is favoring commons-based production. This could lead to contemplation of what I'd consider a genuine political bargain: allow works subject to copyright to remain so but favor commons-based production for new works.

Originally posted to my personal blog (with a bit of cruft, removed above) for reasons of tradition.

Copyright is unjust. Works created under that regime are tainted. Extreme position: the disappearing of works subject to copyright is a good, for those works are toxic for having been created under the unjust regime.

While I understand where you are coming from, I have to disagree with this position. Many works released under a highly-restrictive “All Rights Reserved” license are done so more out of laziness than anything else. If a creator creates something they wish to share with the world, but is not aware of how the system is at work to prevent sharing (many creators I find to be unaware or misinformed, generally, about copyright) we should definitely celebrate the liberation of that work. That the liberation may eventually come through the expiry of the copyright and not through a conscious act of the creator does not, in my view, taint that liberation.

While a poorly-documented copyright holder or future retroactive extension may steal this work back from us, the same holds true even for work born free. We take at face value most declarations of a free birth, but poor documentations or changes in the law may yet steal more of even these works from us (though, of course, we work to avoid that fate).

Separately, I believe that you see works that have spawned significant proprietary legacies (take for example, James Bond) are tainted by these legacies. In this case I agree that the acceptance to the commons of the origins of such a legacy (such as the James Bond novels) must be taken with caution, since anything building on this source often serves to promote the still-encumbered legacy more than it does to add to the commons, and may even run afoul of legal actions by the owners of such legacy (similar to the problem of clean room reverse-engineering).

However, without an effective system of cultural copyleft (which we lack, though CC-BY-SA is a fine attempt) there is nothing to prevent a fully-encumbered legacy from springing from born-free work. There we would find ourselves stuck with the same conundrum. If a proprietary television program based on, say, Pepper & Carrot became very popular, would it thus become useless as a free body of work? Would we have to move on for fear of providing more benefit to the encumbered program than to the existing free work? I hope not, but I don’t know the answer.

So, I say, celebrate Public Domain Day! Much new work enters the commons, not just the select samples that have spawned an encumbered legacy. Use, study, share, remix!

Originally posted to my personal blog (with a slightly different wording, appropriate for that audience).

The point you contest is definitely the weakest of the three I made, but only your first paragraph gets at that point, which I didn’t expand on because it is so extreme. I’ll get back to that in a moment.

Whether a work can be taken out of the commons, or proprietary derivatives created, were not part of my first point, nor any of my questioning of public domain day. As you note, there’s nothing very special about works fallen out of copyright in this respect. The same problems exist for born free works, though I think the primary solution in either case is more competitive commons production of cultural relevance rather than more effective cultural copyleft, though that would be welcome too. (Lacking both, at this point I’d see a successful proprietary program based on Pepper & Carrot would be a big plus; gratis marketing for the original free works. Related, I see Disney & co. building stories based on commons sources to be better for the commons than Disney & co. making up wholly new stories.)

Back to the first point: sure, many works are created without knowledge of copyright and thus are not tainted. But almost any mass market work is deeply influenced by being created within the property regime, even if the immediate creator barely understands copyright: their financiers have people who do. The taint I refer to is something like the taint of works created in service of an authoritarian regime. Occasionally some such work rises above taint, but much of it is interesting only to scholars of the particular regime, seeming grotesque to everyone else. That’s how I feel about contemporary mass marketed culture. I admit this is largely a gut feeling rather than analytical. I was in part drawn to oppose copyright because I hated popular culture. There had to be some policy reason such shit was popular. Ah, copyright! But unfortunately lax copyright enforcement doesn’t save my senses, and presumably neither would zero copyright. But, at least there would probably be less production of mass spectacle. Eventually I’ll post some commentary on An Economic Theory of Avant-Garde and Popular Art, or High and Low Culture which will be relevant to these questions.